¶1 DisseNtiNg Opinion.
¶2 delivered a dissenting opinion.
¶3 The instructions given for the defendant sufficiently charged them as to their duty in weighing the evidence and the bases for and measure of their belief of guilt. Such cases as these are almost necessarily provable circumstantially,' and I am of the opinion that the evidence was not only sufficient to establish strong suspicion but enough to raise a jury issue of a fraudulent connivance.
¶4 I do not dissent from the views expressed as to income received from properties other than those here involved, and agree that the point is not reserved for us in the absence of objection.
¶5 Regarding the use of memoranda to refresh the memory of the witnesses, Mr. and Mrs. Chandler, I cannot assent to the adoption of a universal rule excluding those not made contemporaneously with the event. As a general rule its *107 soundness is clear. Yet here the memoranda were prepared in advance of the trial and related chiefly to the names, dates, and amounts, the exact details of which were not important. It is not difficult to imagine an occasion where such details, inquired of upon the witness stand, would be forthcoming only after repeated delays while the witness searched his memory for exact facts. It is assumed that in the end the data furnishe'd from such fnental exploration would be pieced out from the same memory which was consulted in the preparation of the memorandum.
¶6 The evils potential in this practice are evident, but in the instant case the susceptibility to abuse is outweighed by its improbability and by the considerations above mentioned. Regardless of the rule however, it appears that the extended testimony of Mrs. Chandler was completed without objection and the testimony of Mr. Chandler to which objection was later made was but corroborative of what had gone before. The memoranda supplied details which were subordinate to. incriminatory facts as to which independent recollection alone was available. The fact of some collaboration between the witnesses would be disturbing but for the considerations just mentioned. Jn my opinion an affirmance of the case is warranted.
¶7 I am instructed by Judge Roberts to state that he concurs in the foregoing views.